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August 15, 2009

New York Times op-ed urging "Getting Smart on Crime"

Today's New York Times included this op-ed by Charles Blow titled "Getting Smart on Crime." Though the piece cover a lot of ground that should be familiar to regular readers of this blog, these excerpts (and the chart reprinted here) seemed worth emphasizing:

Much of the rise in the prison population was because of draconian mandatory sentencing laws that are illogical — sociologically and economically.

On the sociological side, as the criminal justice expert Joel Dvoskin of the University of Arizona explained to me, data overwhelmingly support the idea that locking up low-risk, nonviolent offenders makes them worse, not better.

A study from a decade ago that was published in the journal American Psychologist put it this way: “Department of corrections data show that about a fourth of those initially imprisoned for nonviolent crimes are sentenced a second time for committing a violent offense. Whatever else it reflects, this pattern highlights the possibility that prison serves to transmit violent habits and values rather than to reduce them.”

On the economic side, putting nonviolent drug offenders in rehab is cheaper than putting them in prison. A 2006 U.C.L.A. study found that California’s Substance Abuse and Crime Prevention Act of 2000, which allowed nonviolent drug possession offenders to go to rehab instead of prison, saved taxpayers nearly $2.50 for every $1 invested in the program. (Unfortunately, funding for the program has been gutted.)

Put them in prison and make them worse criminals, or put them in rehab, possibly make them better, and save some money. Sounds like a no-brainer.

There are encouraging signs that policy makers are moving in the right direction. Many states have moved to repeal mandatory minimums, and there is a bill in Congress to repeal federal mandatory sentencing. Furthermore, Attorney General Eric Holder seems to be thinking about this issue the right way. Speaking to the American Bar Association last week, he said, “There is no doubt that we must be tough on crime. But we must also commit ourselves to being smart on crime. ... We need to adopt what works.”

Backstory and reaction to denial of capital clemency in Ohio

As detailed in this post, yesterday Ohio Governor Ted Strickland denied clemency for death row defendant Jason Getsy despite the state parole board's recommendation for mercy based in part on the fact that Getsy was the only one of multiple persons involved in the crime sentenced to death. This local article about the decision details some input Strickland received and reactions:

"Justice won today," said Trumbull County Prosecutor Dennis Watkins, who worked feverishly to persuade the governor to ignore the board's recommendation. "He made the decision to kill. This case is as bad as it gets," Watkins said. "This was just evil."

The prosecutor helped coordinate a petition drive that produced at least 2,000 signatures in favor of death, including 150 to 200 from the local General Motors plant. There was even a signature and a petition circulated by a juror who heard the Getsy case in the courtroom of Judge W. Wyatt McKay and found the then-19-year-old defendant guilty as charged and then recommended the death penalty to the judge, who later imposed it.

There were countless e-mails sent to the governor through his deputy counsel Jose Torres and letters from prosecutors across the state backing Watkins and his warning that freeing Getsy from the death penalty would set a dangerous precedent in many court proceedings. A police chiefs association also backed Watkins.

Finally, Watkins also got an endorsement from Ohio Attorney General Richard Cordray, who in a last minute letter to Strickland said that Getsy "is not the kind of individual who is deserving of special mercy in the clemency process.

"Getsy's request for clemency should be evaluated based on his own culpability, and not based on what evidence was available to be presented or how it may have been interpreted in a co-defendant's case. We feel strongly that this is not a justifiable basis for commuting the death sentence on the facts of this case and we believe the precedent set by the Parole Board here would be detrimental to Ohio's system of justice," Cordray wrote.

The board earlier last month voted 5-2 for a rare reprieve after being convinced by Getsy's attorneys that their client didn't deserve death since the older co-defendant, John Santine, who planned the murder and hired Getsy and others didn't get the death penalty.

Strickland said in his statement Friday morning: "Substantial attention has been focused on the different sentences imposed upon Mr. Getsy and his co-defendant, Mr. Santine. Mr. Getsy and Mr. Santine had different roles in the murder. The fact that Mr. Santine was not sentenced to death is not, by itself, justification to commute Mr. Getsy's sentence. Mr. Getsy's sentence was based on his conduct and based upon our review, which included consideration of the differing Santine and Getsy sentences. I do not believe executive clemency is warranted. Although my decision is inconsistent with the recommendation of the majority of the members of the Parole Board, I appreciate and respect their thoughtful consideration and review of this difficult case."

Attorney John Shultz, one of a three-member defense team that represented Getsy at trial, questioned the governor's decision: "I'm not shocked, but I am disappointed. When he (Strickland) ran for office he said he was opposed to the death penalty. He succumbed to the pressure of prosecutors and police chiefs. The governor is wishy-washy. I'm not saying he (Getsy) doesn't deserve to be punished. But, we have Charles Manson still out there and Getsy gets executed? That's what's on my mind today," Shultz said.

"Did The Economist Do Sex Crime Victims Justice?"

The title of this post is the headline of this interesting commentary by Robin Sax at The Huffington Post, which is a response to the articles noted in this post from a recent issue of The Economist. Here is how the commentary begins:

It's not often when an article from The Economist screams, "Robin, you need to read me." But it happened on August 6, 2009 when I read America's Unjust Sex Laws with the stringer, "An ever harsher approach is doing more harm than good, but it is being copied around the world."

When I finished this article, my first feeling was shock. Clearly whoever wrote this article was a journalist and not a therapist, social worker, prosecutor, judge, and obviously not a politician. Nor did the writer live in the trenches of child sexual assault, as I have. Not wanting to rush to judgment, and agreeing/conceding some of the points presented, I decided to wait a few days to form any firm opinions on the article. Now that three days have passed, my nagging concerns have not subsided and I must address some of the issues I have with this article.

First of all, child sexual assault is a disgusting issue -- we all can agree on that. But what most people don't realize is that far more often the misuse or abuse of sex laws lies with the enormous number of cases that do not get prosecuted -- or even filed!

This occurs because the cases may not have qualified legally: there may have been lack of corroboration, lack of sufficient evidence, or dueling viewpoints ("he said/she said)." Sometimes, too, the perpetrator was so crafty in his abuse and so skilled, he ensured that corroboration would not be possible. Other times, there was a delay in the disclosure.

If anything should be explored about the state of the law relating to sex offenders, it's the huge issue of a lack of prosecution, rather than too much of it!

Ultimately, I think this piece's criticism is misunderstanding the focus of the discussion in The Economist. The original piece was mostly concerned with the undue expansion and misuse of sex offender registries and residency restrictions; this reaction piece is mostly concerned with the challenges of effectively prosecuting offenders who sexually abuse children. Ironically, there is possibly important common ground here: sophisticated prosecutors in Iowa and other regions have detailed that the undue expansion and misuse of sex offender registries and residency restrictions may make it harder to effectively prosecute offenders who sexually abuse children. Disappointingly, though, common-ground insights often get lost in broader panics over sex offenders.

Parole granted to Squeaky Fromme after serving 30+ years in prison

Lynette A. Fromme, the waifish acolyte of Charles Manson who tried to kill President Gerald R. Ford in September 1975, was released on parole from federal prison in Texas on Friday morning after spending three decades behind bars, a prison official said. At 8 a.m., Ms. Fromme, 60, walked out of the Federal Medical Center Carswell, a prison and hospital complex in Fort Worth.

Citing privacy rules, federal officials would not say where Ms. Fromme, whose nickname is Squeaky, intended to live or who had picked her up, though they said she would be closely supervised. “She is on parole for the rest of her life,” said Tom Hutchison, the chief of staff of the United States Parole Commission.

Ms. Fromme was 26 when she pushed through a crowd in Sacramento, pulled a pistol from a holster on her thigh and tried to fire at President Ford, who was walking from his hotel to the State Capitol. The gun clicked. It had no bullet in the chamber, but four in the magazine. Secret Service agents wrestled her to the ground.

Ms. Fromme was sentenced to life in prison after a raucous trial during which she tried to represent herself, tried to call Mr. Manson as a witness, was removed from the courtroom for violent outbursts and threw an apple at the judge.

Mr. Manson had recruited Ms. Fromme off the street in the Venice section of Los Angeles when she was a troubled 18-year-old college student. She remained obsessed with Mr. Manson, even after he and five followers murdered the actress Sharon Tate and eight other people in 1969. Ms. Fromme was never charged in connection with that crime, though she had been living with Mr. Manson’s group at the time. She kept a vigil at Mr. Manson’s trial and, like other supporters, carved an X in her forehead in a gesture of solidarity.

In 1987, she escaped from a low-security woman’s prison in Alderson, W. Va., but was recaptured two days later. She said she had run off to be closer to Mr. Manson, who is serving a life term in Corcoran State Prison in California.

Though she was eligible for parole in 1985, she refused to apply. She was finally granted an automatic parole hearing in July 2008 and released for good conduct, officials said. Still, her release was delayed a year as she completed another sentence for her escape.

"Fake lawyer Kieffer sentenced to 51 months"

The title of this post is the headline of this Denver Post article providing the sentencing news in a fraud case involving a defendant well known to lots of folks in the federal sentencing community. Here are the details:

Howard O. Kieffer, an imposter attorney who bilked federal defendants across the country out of thousands of dollars, was sentenced to 51 months in federal prison Friday and ordered to pay $152,750 in restitution.

Kieffer, 54, did not make a statement during the 90-minute sentencing hearing in U.S. District Court in Bismarck, N.D., said Assistant U.S. Attorney David Hagler. He could have faced up to 25 years in prison, but given his criminal history, federal sentencing guidelines placed his conduct in a range of 51 to 63 months....

Federal prosecutors charged Kieffer with mail fraud and making false statements as he applied for admission as an attorney in North Dakota. Testimony and evidence against Kieffer from clients around the country were used during his sentencing hearing. Last year, a Denver Post investigation found that Kieffer represented at least 16 clients in 10 federal jurisdictions around the U.S., mostly on post-conviction motions.

August 14, 2009

Back in June, a federal district judge issued this brief opinion in US v. Engstrum, No. 2:08-CR-430 (D. Utah June 15, 2009), that ruled that the Second Amendment should allow someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor to present an affirmative defense "that he posed no prospective risk of violence." As I noted in this post on the ruling, Engstrum was the first and so far only victory for a federal criminal defendant arguing that the Second Amendment should impact his federal criminal prosecution for a gun possession crime. But, as detailed in this order issued by the Tenth Circuit late yesterday, this victory for gun rights did not last even two months.

Here is the start of the order in In re United States issued by a Tenth Circuit panel upon the government's petition for mandamus seeking to preclude the defendant in Engstrum from getting a Second Amendment jury instruction:

Petitioner United States of America has filed a petition for a writ of mandamus seeking an order from this court preventing the district court from instructing the jury that defendant, Rick Engstrum, may not be deprived of his Second Amendment right to bear arms under 18 U.S.C. § 922(g)(9), if he can show by a preponderance of the evidence that he does not pose a prospective risk of violence. For the following reasons, we grant the writ, and direct the district court not to instruct the jury on this Second Amendment defense, including not giving the proposed jury instruction.

Significantly, Judge Murphy dissents and is able in this paragraph to summarize why this issue should be subject to a lot more debate and consideration in the wake of Heller:

The right to mandamus relief must be “clear and indisputable,” and the burden of proof is on the petitioner. In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1187 (10th Cir. 2009) (quotation omitted). In my view, the government has failed to meet this burden. This court has not yet passed on the constitutionality of 18 U.S.C. § 922(g)(9) in light of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). That opinion’s recognition of an individual right to bear arms for the defense of self, family, and property, id. at 2817-18, raises substantial questions about how 18 U.S.C. § 922(g)(9) may be constitutionally applied. Heller’s dictum regarding the validity of “longstanding prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms, ” 128 S. Ct. at 2816-17, does not address the question. The defendant is not a felon, there is no suggestion he is mentally ill, he did not possess the firearm in a school or government building, and the sale of the firearm is not at issue. Notably, the charge is not under a longstanding statute prohibiting possession of a firearm. The statute interdicting the possession of a firearm by a person previously convicted of a domestic violence misdemeanor, 18 U.S.C. § 922(g)(9), was enacted in 1996. Our recent opinion in United States v. McCane, No. 08-6235, 2009 WL 2231658 (10th Cir, Jul. 28, 2009), is not on point because the McCane court was applying the statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), and that court relied entirely upon the dictum from Heller regarding possession of firearms by felons. McCane, 2009 WL 2231658 at *8. There is simply no authority for the government’s assertion that § 922(g)(9) is constitutional in light of Heller.

As I have said before and will say again, anyone seriously committed to the Second Amendment and gun rights getting serious constitutional respect should be seriously disturbed by how willing and eager lower courts have been to accept federal prosecutors' arguments that Heller is of no consequence for an array of broad and severe federal gun possession crimes. But, disappointingly, frequent Second Amendment advocate David Kopel has a pretty tepid reaction here at The Volokh Conspiracy to the Tenth Circuit's seemingly remarkable ruling that, from my reading, shows significant antipathy toward serious consideration of Second Amendment rights.

I sincerely hope that the defendant in Engstrum seeks en banc review of the panel's order. Not only does Judge Murphy's dissent effectively highlight why mandamus relief here seems inappropriate, but Judge Tymkovich terrific concurrence (discussed here) about Heller and the 922(g)(1) felon-in-possession law in US v. McCane, No. 08-6325 (10th Cir. July 28, 2009) (available here), highlights that at least one other member of the Tenth Circuit is troubled by the important constitutional issues getting summary treatment in the rush to ensure federal defendants get no benefits from Heller. I wonder if the NRA or any other persons so eager to assail Justice Sotomayor for her precedent-respecting Second Amendment work as a circuit judge might back the defendant in this case when other circuit judges have gone far beyond precedent to reject a seemingly reasonable Second Amendment claim.

Ohio governor rejects parole board recommendation of capital clemency

As detailed in this new AP report, "Ohio Gov. Ted Strickland has denied clemency for the triggerman in a 1995 murder-for-hire scheme, overriding the state parole board's recommendation for mercy." As regular readers may recall from posts here and here, the parole board had recommended clemency based in part on the fact that the defendant, Jason Getsy, was the only one of the persons involved in this crime sentenced to death

This related local story reveals that Ohio's attorney general apparently made a pitch to the governor to deny clemency because, according to the Ohio AG, co-defendant disparity was not a sound basis for granting clemency:

Trumbull County prosecutor Dennis Watkins received a five-page opinion from [Ohio Attorney General Richard] Cordray, detailing the reasons he believes Getsy should not be granted clemency.

In the report, Cordray wrote that the Ohio parole board's conclusion that Getsy's sentence should be commuted to reflect the sentence given to his accomplice is not legally sound. "Just because a case involves multiple defendants does not mean that all of them are equally culpable on the facts," the report states.

Cordray wrote that the case against Getsy was stronger than the one against accomplice John Santine, noting that Getsy confessed to being the shooter. "The purpose of executive clemency is to grant mercy where it is warranted, and to correct injustices that cannot be or are not corrected by the judicial branch," Cordray wrote.

Cordray said Getsy was not subject to an injustice. "Getsy's request for clemency should be evaluated based on his own culpability, and not based on what evidence was available to be presented or how it may have been interpreted in a co-defendant's case," the report said.

"Judges' Dissents for Death Row Inmates Are Rising"

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School. Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”

The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year.... The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered....

The dissents rarely have any practical effect in changing the outcome of the cases they address. But Howard J. Bashman, an appellate lawyer in Philadelphia, said such dissents were often directed toward audiences to come: the next appeals court, lawmakers and academics. “You have to think that these judges do have some valid reason for putting all this effort into the exercise than just feeling better about it after they’re done,” Mr. Bashman said.

In addition to being spot-on, Howard's comment leads to the interesting question of whether Democratic control of both Congress and the White House might possible lead to some changes to the Antiterrorism and Effective Death Penalty Act of 1996. President Obama and his administration has been notably quiet on the topic of the death penalty, even though the pace of execution nationwide has picked up during his first year in office.

More than a dozen years ago, California became the first state to legalize medical marijuana for people with serious illnesses. Many used it to relieve pain or other symptoms — and that's still true. But medical marijuana has now become a thriving business in California that serves a lot more than just sick people.

In some parts of Los Angeles, medical marijuana is more common than McDonalds or Starbucks. Places where you can buy a Big Mac or a double tall mocha latte are outnumbered by pot stores, at least 2 to 1. All that's required to purchase the marijuana is a recommendation from a doctor. And a new iPhone app will even help you find the nearest dispensary.

August 13, 2009

NFL Commissioner "sentences" Donte Stallworth to a year without pay

As detailed in this New York Times article, Donte Stallworth has now been "sentenced" again for killing a pedestrian while driving drunk. Here are the basics:

The National Football League’s summer of malefactors took another turn Thursday, when Commissioner Roger Goodell suspended wide receiver Donte’ Stallworth for the entire 2009 season without pay. Stallworth, a member of the Cleveland Browns, will be reinstated after the 2010 Super Bowl.

Last March, Stallworth, while driving drunk, struck and killed a pedestrian near Miami Beach, the morning after he had received a $4.5 million roster bonus from the Browns. He pleaded guilty to D.U.I. manslaughter, a felony, and spent less than a month in prison, a relatively light sentence given in part because of claims of contributory negligence by the pedestrian, who was not in a crosswalk when he was struck.

But after suspending Stallworth indefinitely and then meeting with him twice this month, Goodell took a harder line — he noted in his letter to Stallworth that he believed “further consequences are necessary.”

Stallworth was suspended under the league’s substance abuse and personal conduct policies, which offer the commissioner wide latitude in dealing with players who commit crimes involving alcohol. Stallworth is not allowed to participate in any team activities during the suspension.

“You are clearly guilty of conduct detrimental to the integrity of and public confidence in the N.F.L.,” Goodell wrote in a letter to Stallworth. “Legal arguments that focus on criminal liability under Florida law do not diminish that damage or your responsibility for your conduct.” The letter concluded: “Your conduct endangered yourself and others, leading to the death of an innocent man. The NFL and NFL players must live with the stain that you have placed on their reputations.”

UPDATE: And in other NFL felon news, as reported here, Michael Vick has now signed with the Philadelphia Eagles. So while Stallworth now has no fantasy football value in 2009, Vick is now back on the board. (And, of course, Plaxico Burress's status still remains uncertain, though I would not expect to see him on the football field for quite some time.)

Providing a fitting and timely follow-up to this morning's WSJ article on these topics (discussed here), today the Ninth Circuit in US v. Riley, No. 08-50009 (9th Cir. Aug. 13, 2009) (available here), vacates a condition of supervised release that prohibited the defendant "from using a computer to access 'any material that relates to minors.'" Here is an excerpt from the opinion:

Riley contends that this condition is impermissibly overbroad. Because the condition reaches any material relating to minors, Riley maintains, it would prevent him from accessing even current event news stories that pertain to children. He further argues that, as he is a technical engineer, the condition unduly prevents him from working on computer programs designed for or used by minors. We agree that the condition is impermissibly overbroad, imposing a far greater deprivation of liberty than reasonably necessary to achieve legitimate goals of supervised release.

The condition sweeps extremely widely. As the government’s counsel agreed at oral argument, a literal reading of the condition would prohibit Riley from watching any movie on his computer that had children in it. Nor could Riley use a computer to send his own young relatives birthday cards. According to the government, the condition would also prohibit Riley from taking a job at a health insurance company that required him to enter minors’ claims information into a database. Moreover, the condition imposes a blanket ban on Riley’s use of a computer, not use subject to approval by his probation officer. In other words, even if a probation officer agreed that using a computer to access particular material were acceptable, the condition would still prohibit Riley from accessing the material if it related to minors.

"Gulags in the sun"

The title of this post is the headline given to this notable piece in The Economist discussing California's prison problems. Here are snippets:

The overcrowding in California’s prisons, by far the worst in the country with only Georgia and Alabama coming close, has been the subject of lawsuits for years. The latest riot came just days after three federal judges, calling conditions “appalling,” ordered California to prepare, within 45 days, a plan to bring its prison population down to 137% of capacity in order to approach constitutional standards of decency. Jerry Brown, California’s attorney-general as well as a former governor and likely candidate for governor, has vowed to fight the order....

California has passed around a thousand laws mandating tougher sentencing. Many have gone through the legislature, where politicians of both parties compete to be “toughest on crime”. Others have come directly from voters, who often bring a “crime-of-the-week mentality” to the ballot box, says Barry Krisberg, the president of the National Council on Crime and Delinquency, a think-tank in Oakland.

The result is a disaster, says Ms Petersilia. California spends $49,000 a year on each prisoner, almost twice the national average. But it still has the country’s worst rate of recidivism, with 70% of people who leave prison ending up back in it, compared with 40% in America as a whole.

"Courts Face Growing Battle Over Limits on Ex-Convicts"

The title of this post is the headline of this effective article in today's Wall Street Journal. Here are some highlights:

When felons are released from prison, what is the best way to give them back their freedom but make sure they don't commit a crime again?

Trial judges across the country are struggling with that question, particularly as they confront a rise in federal sex-offense cases, some of which involve computer downloads of illegal pornography. The debate has intensified as some judges impose what felons say are broad or arbitrary restrictions on how they live once they are freed from prison, from bans on alcohol and gambling to constraints on housing arrangements....

The details of supervised release, which entails monitoring felons after they leave federal prison, are spelled out by judges when they issue sentences. Some defendants have successfully challenged the release terms on the grounds that they would impede rehabilitation, or by arguing that the restrictions were unrelated to the original crime....

As of September 2008, more than 95,000 convicts were serving a term of supervised release, up from 51,000 in 1997, according to the Administrative Office of the U.S. Courts.

Judges are allowed to impose special conditions during supervised release, as long as the conditions are related to the crime and don't cause "unnecessary deprivations" of liberty. For example, judges can forbid ex-convicts from associating with people who helped them commit crimes in the past. In some cases, judges have barred felons from using the Internet, while others have prevented sex offenders from driving a car or said they must wear "appropriate" clothing.

Until recently, challenges to supervised release conditions were rare. Most defendants who pled guilty focused their appeals on challenging prison time, lawyers say. But that might be changing. "I tell my clients now they need to worry just as much about the supervised release as about the sentence because it will have equally long-lasting life consequences for them," said Troy Stabenow, a federal public defender in Jefferson City, Mo.

Virginia governor's race raising crime and punishment debates

This new Washington Post article about the Virginia governor's race, which is headlined "McDonnell Proposes Drug Courts, Lifetime Sex Offender Tracking," suggests that the future is now for serious political discussion of certain alternatives to prison for dealing with crime and punishment. Here are excerpts:

Republican gubernatorial candidate Robert F. McDonnell released a lengthy proposal Wednesday designed to curb crime in Virginia, including lifetime monitoring for sexual predators through the Global Positioning System and other technology. The former prosecutor and attorney general also said he has reversed his position on drug courts and now supports opening more of them in the state after recent studies documented their successes.

McDonnell's announcement at the annual Virginia Association of Chiefs of Police conference in Newport News was the second of three about public safety. He released a plan to address gang violence in May, and a third announcement is expected next week. "I think public safety is the first and foremost duty of government," he said in an interview. "If people don't feel secure in their homes and their neighborhoods and their businesses, they are not going to be free to pursue the American dream."

McDonnell acknowledged that some of his proposals might be opposed by members of his party in the General Assembly, which would need to approve them, but said he would be a governor who could forge compromises among both chambers and both parties.

Of course, even a politician willing to revise his views on drug courts cannot avoid also showing some toughness:

Other proposals [introduced by McDonnell] include: implementing tougher mandatory minimum sentences for repeat drug offenders; increasing the penalty for a convicted sex offender who fails to register with the state; creating an advisory board to tackle domestic violence; and requiring that juveniles charged with repeat violent felonies be tried as adults.

Sixth Circuit splitting over challenges to Ohio's execution protocol

Yesterday the Sixth Circuit issued this opinion in Getsy v. Strickland that affirms the dismissal of a death row inmate's challenge to Ohio's lethal injection protocol as time-barred. Here is part of the discussion from the opinion for the court, per Judge Gilman (with emphasis in the original):

So if Baze did not create a new constitutional right, what precisely did Baze accomplish? The answer, we believe, is that Baze clarified the standards that should apply to the merits of Eighth Amendment protocol challenges. Justice Thomas acknowledged that Baze simply created a new “formulation of the governing standard” rather than an entirely new right. See Baze, 128 S. Ct. at 1556 (Thomas, J., concurring in the judgment) (emphasis added).

This raises the question of whether Baze’s freshly clarified standards trigger a new accrual date. We do not believe that they do....

In this case, Getsy’s constitutional claim is focused solely on Ohio’s particular application of the lethal-injection method of execution. He contends that someone on the execution team might make a mistake in administering the drug cocktail and that he might suffer a painful death akin to torture as a result. Because his ability to assert these kinds of challenges was well established long before Baze, as conclusively shown by Getsy’s intervention in the Cooey II case in 2007, we are unpersuaded that Baze caused Getsy’s deadline to file his § 1983 claim to be reset.

Judge Moore concurs in the panle opinion, but the start of her concurrence reveals that she would like to see a different result:

Constrained by the rule announced in Cooey v. Strickland, 479 F.3d 412, 422 (6th Cir. 2007) (Cooey II), I concur in the majority opinion. I write separately, however, to highlight my conviction that Cooey II was wrongly decided and to urge immediate en banc review of the application of that rule in the present case to ensure that Getsy’s potentially valid 42 U.S.C. § 1983 claim is not improperly and unjustly time barred.

The third member of this panel, Judge Merritt, dissents but this opinion now merely reports that his "separate dissenting opinion ... will be forthcoming." I suspect it will also provide an interesting read.

August 12, 2009

As detailed in this post, in late March an Eleventh Circuit panel handed down a notable opinion in US v. Irey, No. 08-10997 (11th Cir. Mar 30, 2009) (available here), which affirmed a below-guideline sentence of 210 months for a 50-year-old offender convicted of sex offenses that one judge described as involving "utterly gruesome details." As announced in this order issued today, the full Eleventh Circuit has now decided to re-consider the reasonableness of the sentence in this case en banc.

Notable new paper with interesting post-Booker data analysis

This new paper on SSRN by Ryan Scott, which is titled "In Search of the Booker Revolution," presents new data and analysis on how one district is sentencing after Booker. Here is the abstract:

In 2005, the Supreme Court in United States v. Booker rendered the United States Sentencing Guidelines advisory. Arriving after eighteen years of complex and mandatory sentencing rules, the decision initially was heralded as revolutionary, both by critics and defenders of the federal Guidelines. But subsequent reports by the Sentencing Commission have shown few signs of a Booker revolution, revealing surprisingly modest changes. The existing research on post-Booker sentencing is incomplete, however, because it has not examined the response of individual judges to the decision. That omission is critical, given that the reduction of inter-judge disparity was the central purpose of the Guidelines. Studying sentencing patterns by individual judges is notoriously difficult because the Commission does not disclose the identity of the sentencing judge when releasing case records. But one district court — the District of Massachusetts — has adopted a unique policy that makes key sentencing documents available to the public, allowing the analysis of judge-specific data.

This Article offers the first empirical evidence of individual judges’ responses to Booker, drawing on a dataset of sentences from 2002 to 2008 by judges in Boston who share a common case pool. An analysis of those sentences suggests a modest but clear increase in inter-judge disparity since Booker. The strength of the relationship between the identity of the sentencing judge and sentence length has increased, by some measures 60-80% above pre-Booker levels. The identity of the judge also has become a stronger predictor of sentencing relative to the Guidelines: some judges now sentence outside the guideline range more frequently, and to a greater extent, than their colleagues. Although it is difficult to know whether similar trends have played out in other districts, the Boston data suggest that judges’ disagreements about the Guidelines have a greater effect on sentencing outcomes since Booker.

This interesting and important data provides a vakuable new empirical perspective on Booker's impact, though the District of Massachusetts is not a perfectly representative sentencing district for lots of reasons. Still, for everyone eager to get a handle on Booker's impact in at least one district, this paper provides the latest, greatest view from the sentencing courts.

August 11, 2009

Where the jobs (and future sentencing issues) can be found

This new piece in The National Law Journal, which is headlined "DOJ Looks for 'Rock Star' to Run Top-Priority Fraud Cases," is a fascinating read for anyone interesting the future of the federal criminal justice system. Here are excerpts from the piece:

The Obama administration is dramatically beefing up the fraud section of the U.S. Department of Justice's Criminal Division as it tries to add muscle to back up its rhetoric about cracking down on health care and corporate fraud. The department is looking for what Assistant Attorney General Lanny Breuer calls "a superstar" to lead the fraud section. It also plans to add 10 trial attorneys and fill the long vacant job of deputy chief for corporate, securities and investment fraud.

That promise of extra bodies is critical: The fraud section is already the Criminal Division's largest litigation unit. With additional resources and the strong backing of Justice higher-ups for more fraud prosecution, the new chief should become the bane of defense lawyers' existence nationwide.

In advertising for the post, Justice says the new chief will be "at the forefront of the Department's efforts" to hold companies and individuals responsible for the economic downturn (where appropriate, of course). The chief will also play a "key role" in developing Justice policy and fraud enforcement initiatives involving millions of dollars -- albeit likely not litigating the cases personally. (Traditionally the top working litigators in the fraud section have been the deputy chiefs.)...

Fraud section attorneys are often described as a "rapid response team" that jumps into districts around the country to target the hot crime of the moment. Five of those 10 trial lawyers would be assigned where needed, said Justice officials. But the other five spots are new positions dedicated to the prosecution of health care fraud. Attorney General Eric Holder Jr. has declared the fight against health care fraud to be a top priority....

The defense bar raises the concern that adding more prosecutors and launching more strike forces will inevitably mean that Justice starts trying to turn minor, inadvertent violations of complex health laws into major litigation and press-release-worthy settlements. Prosecutors live to prosecute, especially young lawyers told they're bringing "cases of extraordinary importance" aimed at reaping millions for the American taxpayer. So defense lawyers counsel caution. "When the statistics drive the effort, you run the risk of sweeping in otherwise explainable, innocent or nonfraudulent conduct," warned Gibson, Dunn & Crutcher partner Robert Blume of the Los Angeles-based firm's Washington and Denver offices.

I have suggested in this past that the economic downturn would likely mean a good upturn in business for white-collar defense lawyers. And, as often noted on this blog, white-collar cases frequently raise interesting and high-profile sentencing issues. With a new policy-making team and a bunch of fresh new recuits inside Main Justice, we all should plan on this area of the federal criminal justice system to be hot for quite some time.

The first sentence of this local article provides the big capital punishment news from North Carolina today: "North Carolina now allows challenges to the death penalty based on race." Here's more from the start of the new report:

Gov. Bev Purdue signed the N.C. Racial Justice Act Tuesday, a victory for supporters who contend its passage is the first step in closing racial disparities in how capital punishment is applied, especially in the South where the number of condemned inmates tends to be higher. The law allows defendants to use statistical data to argue racial bias.

“I have always been a supporter of death penalty, but I have always believed it must be carried out fairly,” Perdue at the sigining. “The Racial Justice Act ensures that when North Carolina hands down our state’s harshest punishment to our most heinous criminals – the decision is based on the facts and the law, not racial prejudice.”

Kentucky is the only other state with such a law that allows death penalty challenges based on ethnicity.

The state Senate passed the bill last week and the House approved it last month. The Senate bill was sponsored by Sen. Floyd McKissik (D-Durham) and in the House by Reps. Larry Womble (D-Forsyth), Earline Parmon (D-Forsyth), Paul Luebke (D-Durham) and Pricey Harrison (D-Guilford). “This is a very auspicious and also historic occasion for the state of North Carolina. This is about justice for our state, and North Carolina is leading the nation in this particular area,” Womble said. “I want to thank all of the sponsors, supporters and the people of North Carolina. We want the world to know that we will be fair and objective in this area.”

Studies have concluded that ethnic minorities – especially blacks – and the poor are more likely to be sentenced to death than whites. North Carolina has 163 inmates on death row, including 98 African Americans. Capital punishment opponents point to a 2001 study by researchers at UNC-Chapel Hill that found that the odds of a murder defendant condemned to death in North Carolina increase if the victim is white.

"At least 23 states spend less on prisons"

The title of this post is the headline of this effective new piece at Stateline.org. Here are a few excerpts that spotlight the continued impact of both lean budgets and political dynamics on the operation of modern criminal justice systems:

The national recession is taking its toll on what had been one of the fastest-growing areas of state government spending: prisons. Even though state corrections budgets have ballooned in the past two decades amid a surging U.S. prison population, at least 23 states slashed funding for prisons this year, according to a new survey by the nonpartisan Vera Institute of Justice, a research organization based in New York....

Six states — Georgia, Idaho, Kansas, Montana, Nebraska and Washington — cut funding for corrections by more than 10 percent from last year’s levels, according to the study. Kansas saw the biggest recorded decrease, spending 22 percent less than it did last year.

Corrections is the fifth-largest area of state spending after Medicaid, secondary education, higher education and transportation. State spending on prisons has swelled as the nation’s jail and prison population has climbed to 2.3 million people, or about one in every 100 adults. But grim budget realities are forcing state lawmakers’ hand....

According to Stateline.org’s annual review of states’ legislative sessions, at least seven states — Colorado, Kansas, Michigan, New Jersey, New York, North Carolina and Washington — this year decided to close prisons. In some states, those plans touched off resistance among prison unions and in hard-hit communities anxious about losing even more jobs....

While some criminal justice advocates contend that early releases and other cost-cutting moves could endanger public safety, others say states have not gone far enough in cutting inmate numbers. Some advocates say state lawmakers have avoided what they see as the “elephant in the room” — tough sentencing policies that have put many low-level offenders behind bars for longer and been a major factor behind the explosive growth in the nation’s prison population since the 1970s, when many of the laws were passed....

Washington state’s legislative session this year was “completely upside down in terms of criminal justice policy,” said state Rep. Roger Goodman (D), vice chair of the House Judiciary Committee. Goodman said lawmakers cut funding for the wrong programs — such as housing and other transitional services that can help ex-inmates stay out of trouble — and refused to make substantial changes to the sentencing policies that he said have put too many nonviolent and drug-addicted people in prison in the first place. Goodman explained lawmakers’ distaste for making sentencing changes this way: “There aren’t enough political points to be gained by taking this issue on. There are political points to be gained by attacking it.”

While broad changes to criminal sentencing laws remain a tough sell issue in many state capitols, corrections officials are pushing other, less controversial changes to reduce prison populations. Many states have made sick or dying inmates eligible for early parole. Other states, including Florida and Tennessee, have invested more heavily in drug treatment courts and community supervision programs in the hopes of keeping offenders from returning to prison.

Some recent related posts about the realities of the modern prison economy:

DOJ not to appeal Tenth Circuit sentencing ruling in Nacchio case

In posts here and here discussing the Tenth Circuit panel's important ruling that reversed the sentence imposed on former Qwest CEO Joe Nacchio following his conviction for insider trading, I suggested that the Justice Department might not even bother to seek en banc or SCOTUS review of the panel work. Thus, I was not too surprised by this new post, headlined "Analysis: New approach to 'insider' gains," by Lyle Denniston at SCOTUSblog. Here are the basics:

A major dispute over how severely to punish a corporate “insider” who makes gains from tradmg in the company’s stock with information other investors don’t have seemed a likely bet for Supreme Court review. But that won’t happen now: the Justice Department has decided not to test the question further, after losing on it recently in the Tenth Circuit Court....

In general, the Circuit panel adopted a variation of the so-called “market absorption theory,” as applied directly to “insider” trading. Simply put, this theory suggests that, if an “insider” trades on private information about the company, the gain made from the transactions will be reduced if there is evidence that — once all investors had access to that information — the market absorbed it, so that any gain beyond that point for the “insider” would be due to market activity, not the continuing effect of the illegal trading.

Only two federal appeals courts have ruled on that theory. The Eighth Circuit rejected it in its 2005 divided en banc decision in U.S. v. Mooney. Embracing the views of the Eighth Circuit dissenters, and creating a direct conflct, the Tenth Circuit embraced the theory. That conflict increased the prospect that the Supreme Court could take up the issue. But, the Justice Department will not test it in the Nacchio case, either by seeking Circuit en banc review or by filing a Supreme Court petition. “We will not be seeking further review,” a Department spokesperson, Beverley Lumpkin, said on Tuesday in response to a query.

Timely reflections on sentencing retroactivity

As Congress considers reducing crack sentences and state work on reducing their prison population, the retroactive application of new sentencing rules that reduce sentences is an especially important issue these days. Consequently, I was pleased to see this timely new piece on SSRN by S. David Mitchell, titled "In With the New, Out With the Old: Expanding the Scope of Retroactive Amelioration." Here is the abstract:

The legislative decision to amend a statute and reduce a sentence but not to apply it retroactively to pending prosecutions or to finalized convictions is in accord with the principles of retroactivity, but contrary to legitimate goals of punishment, i.e. deterrence and retributivism. Genarlow Wilson, convicted at seventeen of aggravated child molestation, a felony, for consensual oral sex with a fifteen-year old classmate, was sentenced to a mandatory minimum of ten years. While his appeal was pending, the Georgia Legislature reclassified the conduct as a misdemeanor and reduced the sentence to a maximum of one year but decided not to apply the changes retroactively to him. I use the Genarlow Wilson case as a backdrop to examine the denial of the retroactive application of ameliorative sentencing changes that is manifested through the use of a legislative device known as the express saving clause or a general saving statute.

Currently, in the majority, ameliorative sentencing changes are applied retroactively provided there is a clear expression of legislative intent. Dissatisfied with this approach, a minority of jurisdictions engage in retroactive amelioration routinely either judicially or legislatively. While the courts in these jurisdictions apply ameliorative changes retroactively despite the existence of a general saving statute in contravention of the rules of statutory construction thus bordering on what some may label as judicial activism, the legislatures have created an ameliorative amendment exception to the general saving statute. Each applies ameliorative sentencing changes retroactively but restricts the application of such changes to circumstances in which there is neither an express saving clause nor has final judgment been determined. In my proposed retroactive amelioration statute, I advocate for ameliorative sentencing changes to be applied to pre-final judgment defendants adopting the current minority legislative practice and to those with finalized convictions through an administrative sentence readjustment process.

The Economist assails US sex offender laws

As these headlines suggest, these articles are mostly critical and their main focus is sex offender registration rules. Here is a snippet from the first piece linked above:

Every American state keeps a register of sex offenders. California has had one since 1947, but most states started theirs in the 1990s. Many people assume that anyone listed on a sex-offender registry must be a rapist or a child molester. But most states spread the net much more widely. A report by Sarah Tofte of Human Rights Watch, a pressure group, found that at least five states required men to register if they were caught visiting prostitutes. At least 13 required it for urinating in public (in two of which, only if a child was present). No fewer than 29 states required registration for teenagers who had consensual sex with another teenager. And 32 states registered flashers and streakers.

Because so many offences require registration, the number of registered sex offenders in America has exploded. As of December last year, there were 674,000 of them, according to the National Centre for Missing and Exploited Children. If they were all crammed into a single state, it would be more populous than Wyoming, Vermont or North Dakota. As a share of its population, America registers more than four times as many people as Britain, which is unusually harsh on sex offenders. America’s registers keep swelling, not least because in 17 states, registration is for life.

August 10, 2009

Is SCOTUS partially to blame for rioting in a California prison?

Just when it might seem things could not get any worse for California's over-crowded and politically dysfunction prison system, a massive riot breaks out. And, as this New York Times coverage of the riot reveals, it might be appropriate to blame a Supreme Court ruling for helping to create the conditions in which this riot broke out:

Rioting inmates smashed and burned a large California prison on Saturday night and Sunday morning, injuring 250 prisoners and hospitalizing 55. The 11-hour riot, at the Reception Center West at the California Institution for Men in Chino, about 40 miles east of Los Angeles, broke down along racial lines, with black prison gangs fighting Latino gangs in hand-to-hand combat, the authorities said.

No prison employees were injured, no deaths were reported, and no inmates escaped, state officials said. But 10 of the 33 prisons in the state system were put on lockdown to prevent unrest from spreading. Those 10 were in the southern part of the state.

Damage to the 1,300-inmate medium-security prison was “significant and extensive,” said a spokesman, Lt. Mark Hargrove. One housing unit was virtually destroyed by fire, Lieutenant Hargrove said. The other housing areas were so badly damaged that they were uninhabitable, he said, so some inmates were being temporarily housed in tents while others were sent to alternate prisons.

With more than 150,000 inmates, the California prison system is one of the most crowded in the nation, with many of its facilities holding more than double the number of inmates they were designed for. A federal three-judge panel ruled last week that crowding and poor health care caused one avoidable inmate death each week and that the system was “impossible to manage.”...

The Chino prison is trying to put into effect a 2005 Supreme Court decision that prohibits automatic and systematic racial segregation of prison inmates after more than three decades of racial separation in the corrections system. Lieutenant Hargrove said that inmates could now opt out of segregation and that a growing number of black, Latino and white prisoners shared cells, increasing racial tensions in the prison....

In its order last week, the federal panel directed the state to come up with a plan to reduce its prison population by 40,000 inmates within two years. Attorney General Jerry Brown, a possible candidate for governor next year, said he would probably appeal the ruling.

Barry Krisberg, the president of the National Council on Crime and Delinquency in Oakland, said the riot illustrated the many problems plaguing the state prison system, including growing cost overruns and pending cuts. “There are proposals to eliminate all programs including reducing visiting days for inmates participating in programs,” Mr. Krisberg said. “But if you isolate these men from their families and cut down even the most basic educational and counseling programs, you’re going to create more idleness, and this is what happens.”

"Judge sentences man to 6 months in jail for yawning"

The title of this post is te headline of this article from the Chicago Tribune. Here are the basic details from the start of the artice:

Clifton Williams arrived at the Will County Courthouse in Joliet and sat in the fourth-floor courtroom where his cousin was pleading guilty to a felony drug charge. As Circuit Judge Daniel Rozak handed down the cousin's sentence -- 2 years' probation -- Williams, 33, stretched and let out a very ill-timed yawn.

Williams' sentence? Six months in jail -- the maximum penalty for criminal contempt without a jury trial. The Richton Park man was locked up July 23 and will serve at least 21 days. "I was flabbergasted because I didn't realize a judge could do that," said Williams' father, Clifton Williams Sr. "It seems to me like a yawn is an involuntary action."

Chuck Pelkie, a spokesman for the state's attorney's office, said the prosecutor in the courtroom that day told him that "it was not a simple yawn -- it was a loud and boisterous attempt to disrupt the proceedings." Jason Mayfield, the cousin of Williams who was pleading guilty at the time, said it was "not an outrageous yawn."

A Tribune review of a decade's worth of contempt-of-court charges reveals that Rozak jails people -- typically spectators whose cell phones go off or who scream or shout profanity during sentencing -- at a far higher rate than any other judge in the county. There are now 30 judges in the 12th Judicial Circuit, but since 1999, Rozak has brought more than a third of all the contempt charges, records show.

Public defender complaining about increased pace of Ohio executions

This new item from the Cleveland Plain Dealer, which is titled "Executions are coming too fast, Ohio Public Defender Tim Young says," spotlights some of the complains and concerns emerging as Ohio becomes the north's Texas:

The state of Ohio is lining up death-row inmates for execution at a feverish pace not seen here since capital punishment was reinstated a decade ago. Having already carried out three executions since June, the state has scheduled at least one lethal injection every month through the end of the year. That could mean that by year's end, Ohio will have executed eight men in the final seven months of 2009. The previous high was seven in all of 2004.

They are coming too fast, argues Ohio Public Defender Tim Young, who worries that the burdens on state officials to carry out the tasks in rapid-fire succession could lead to careless mistakes. "This should never become ordinary, it should never become run-of-the-mill, it should never be a normal happening like the turning of a calendar page," Young said....

Attorney General Richard Cordray said he couldn't help but notice the stepped-up rate of executions and the burden that could pose on the system and families. But his office is prepared, he said. "We can handle whatever they do with us," Cordray said.

So many condemned inmates are coming up at once because of a backlog of cases resulting from a pair of U.S. Supreme Court cases since 2007 that separately led to de facto moratoriums on lethal injections across the country. Also, Ohio's death row -- with 168 men and one woman -- is chock full of inmates who were sentenced in the 1980s and early 1990s, before life without parole was a sentencing option. Many are now running out of appeal options.

"Mentally Ill Offenders Strain Juvenile System"

The title of this post is the headline of this article in this morning's New York Times, which provides still more evidence that crime and criminal offenders often are a reflection of public health problems. Here is a snippet:

As cash-starved states slash mental health programs in communities and schools, they are increasingly relying on the juvenile corrections system to handle a generation of young offenders with psychiatric disorders. About two-thirds of the nation’s juvenile inmates — who numbered 92,854 in 2006, down from 107,000 in 1999 — have at least one mental illness, according to surveys of youth prisons, and are more in need of therapy than punishment.

“We’re seeing more and more mentally ill kids who couldn’t find community programs that were intensive enough to treat them,” said Joseph Penn, a child psychiatrist at the Texas Youth Commission. “Jails and juvenile justice facilities are the new asylums.”

At least 32 states cut their community mental health programs by an average of 5 percent this year and plan to double those budget reductions by 2010, according to a recent survey of state mental health offices.

Juvenile prisons have been the caretaker of last resort for troubled children since the 1980s, but mental health experts say the system is in crisis, facing a soaring number of inmates reliant on multiple — and powerful — psychotropic drugs and a shortage of therapists.

In California’s state system, one of the most violent and poorly managed juvenile systems in the country, according to federal investigators, three dozen youth offenders seriously injured themselves or attempted suicide in the last year — a sign, state juvenile justice experts say, of neglect and poor safety protocols.

In Ohio, where Gov. Ted Strickland, a former prison psychologist, approved a 34 percent reduction in community-based mental health services to reduce a budget deficit, Thomas J. Stickrath, the director of the Department of Youth Services, said continuing cuts would swell his youth offender population. “I’m hearing from a lot of judges saying, ‘I’m sorry I’m sending so-and-so to you, but at least I know that he’ll get the treatment he can’t get in his community,’ ” Mr. Stickrath said.

But youths are often subjected to neglect and violence in juvenile prisons, and studies show that mental illnesses can become worse there.

Kentucky looking to reduce prison costs to avoid educational cuts

Telling a story that I suspect is familiar in the majority of states, this local article from Kentucky, headlined "State looks at prison spending," highlights that state leaders are coming to see that surging prison costs risk drawing funds away from other important state funding priorities:

State lawmakers are looking at options for the General Assembly to consider during its 2010 legislative session intended to curb the state's soaring prison population and free up cash for other productive expenses — such as education.

As Kentucky's budget funds become increasingly scarce, lawmakers are looking to free up money to spend elsewhere. Lawmakers have been considering options to shrink, or at least slow, Kentucky's prison population. It's a persistent problem, without easy answers.

"The current rate of growth of putting people in prison in Kentucky is not sustainable," Kentucky Chamber of Commerce President Dave Adkisson told a legislative panel on the judiciary last week. "The potential solutions are not about being soft on crime, but are about rethinking how we deal with offenders in a way that lowers the cost."...

Kentucky has about 22,000 inmates. Last year's corrections budget was about $457 million. That's a fairly large chunk of money to some, considering the state budget is about $9.4 billion a year.

Adkisson said money for prisons, and money for Medicaid and public employee health insurance, is changing Kentucky's priorities and shifting its focus away from education. Instead, Adkisson said, the state should consider an expansion of Kentucky drug courts, possible privatization of prisons and a change in persistent felony offender laws that require mandatory sentences.

"The state is consciously or unconsciously shifting its priorities away from education toward some of these things that are driving the state budget," Adkisson said. "Kentucky is spending more to address the cost of failing to invest in education than it is on students."

The Kentucky Criminal Justice Council last year offered the legislature a report filled with recommendations on how the state might reduce its prison population while maintaining public safety. Among other things, the report said the state might change some of its drug laws to reduce penalties. It also recommended making possession of less than a gram of cocaine a misdemeanor instead of a felony and raising the felony theft threshold from $300 to $500. Lawmakers earlier this year responded by approving legislation that would offer first time non-violent drug offenders a diversion program that would offer long-term treatment.

It is both significant and telling that these statements about the need for Kentucky to put more money into education and less into imprisonment are coming, not from traditional liberal public policy groups, but from he president of the state's Chamber of Commerce. Slowly but surely, more people outside of traditional criminal justice arenas are coming to understand that modern mass incarceration is a very costly enterprise that has many problematic ripple effects throughout all of society.

August 9, 2009

Detailing the extreme toughness of juvenile justice in Florida

The constitutionality of the extreme toughness of juvenile justice in two paricular Florida cases will be before the Supreme Court in the Graham and Sullivan cases to be argued in the fall. In the meantime, this front-page article from the Sarasota Herald-Tribune, which is headlined "Florida justice: Tough on youths," provides more details on just how tough the Sunshine State is on young offenders. Here are snippets from the piece:

Records show that Florida has handed out more life sentences to juveniles for non-murder crimes than have all other states combined. Florida's sentencing raises questions about cruelty as well as concerns about racial bias. While blacks represent about 16 percent of Florida's population, and about half its prison population, 84 percent of juveniles sentenced to life without parole for non-homicide offenses were African-American.

Florida has sentenced 77 young men to spend their lives in prison, without any chance of release, based on non-homicide crimes they committed when they were 17 years old or younger, according to a preliminary study by Florida State University researchers. Six of those prisoners were 13 or 14 at the time of their crimes.

A Herald-Tribune review of state records shows that some juveniles were given life without parole for as few as one or two convictions of non-homicide crimes. Florida's stance has generated protests from human rights groups and a lawsuit heading to the U.S. Supreme Court, which contends such sentences violate the Constitution's ban on cruel and unusual punishment.

But the state shows little sign of stopping judges from imposing life sentences on juveniles or providing a path to freedom for those already in prison. Lawmakers rejected a bill last spring that would have allowed juveniles in some non-homicide cases to eventually become eligible for parole.

The controversy in Florida stands out because it differs so greatly from policies elsewhere. Florida prisoners represent 69 percent of the 111 inmates reported nationally to be serving life without parole for their non-homicide juvenile crimes. Thirty-six states have no non-homicide juvenile lifers.

Reviewing the modern persistence of persistence of sentencing guidelines

This new piece appearing on SSRN, which is titled "Guidelines as Guidelines: Lessons from the History of Sentencing Reform," ensured itself a mention on this blog by mentioning this blog in its abstract. But, as the abstract for this piece suggests, there are other reasons why the piece is recommended reading:

Over the last thirty years, sentencing guidelines have become an increasingly prominent feature of the American criminal justice system. Between the Supreme Court’s Apprendi-Blakely-Booker line of cases, dedicated law reviews like the Federal Sentencing Reporter, multitudinous other law review pieces, and Doug Berman’s famous sentencing blog, a great deal of ink has been spilled discussing the contours and future of guidelines reform. Most of this scholarship, however, falls in one of two camps. In one camp are scholars who chronicle the history of sentencing guidelines in particular states. In the other are scholars who discuss guidelines as a national phenomenon, but mostly with an eye to exposing the flaws in the federal system, or offering suggestions for future reformers. Most scholars in the latter camp use the states as foils for the federal system, and chronicle the former as a success story and the latter as a failure.

This Note is different. It has one essential goal: offering an explanation for the persistence of sentencing guidelines in American jurisprudence at large. As some scholars have noted, state guidelines survived and thrived in the face of Blakely. At the same time, the federal guidelines still govern the outcome in around 85% of criminal cases, despite being panned as a failure and rendered purely advisory by the Supreme Court. This Note attempts to account for this persistence by offering a somewhat abstract “model” for guidelines resilience. In particular, this Note draws upon the states’ experience to argue that guidelines are most successful when they represent a diversely composed commission’s collaborative effort to administer and regulate criminal sentencing rather than revise substantive criminal law. Yet this Note also accounts for the federal experience as well. It argues that when guidelines reform ambitiously attempts to do more — when the guidelines embody a new, draconian criminal code intended dramatically to alter sentencing practice, and the commission acts “legislatively” in defining and ranking crimes — such reform prompts eventual opposition and evasion, and ultimately some form of external moderation is a necessary precondition for continued survival. I argue that for the federal system, Booker served that role. I conclude by exploring what this history may mean for the future.

This model — part historical and part theoretical — is by no means perfect. But it represents an important first step in synthesizing the history of guidelines reform — a step that may well prove helpful for future sentencing reformers.

"Myths About High Times in America"

The title of this post is the headline of this interesting piece in the Washington Post by Ryan Grim, who is also the author of "This Is Your Country On Drugs: The Secret History of Getting High in America." Here are two parts of the piece I found especially interesting:

Myth 3. Legalization will increase teen drug use. But the children! Californians fretted loudly in 1996 that the state's new medical marijuana law would lead to an increase in teen pot-smoking, so the state studied it closely. The attorney general's first look a year later found no effect. The office looked again a decade later. Teen use had collapsed. Among seventh- and 11th-graders, the number of kids saying they'd smoked in the last month fell by a quarter; among ninth-graders, it fell by 47 percent. Bigger declines were found in weekly and annual use. In almost every other state that passed a medical marijuana law, pot-smoking among children declined faster than in states that didn't.

Myth 4. In foreign countries, legalization hasbeen disastrous. First, no country has ever completely legalized drugs, not since global treaties were signed a century ago ushering in prohibition. In Holland, drug laws are still on the books, but a social pact between the government and the people keeps shops from getting busted.

Portugal became the first European country to abolish drug laws when it repealed criminal penalties for pot, cocaine, heroin and methamphetamine in 2001. The world freaked: The United Nations suggested that the new law could be a treaty violation and would lead to crime, a spike in addiction and a rise in "drug tourism." But the country didn't fully legalize. People caught with drugs still had to go to a magistrate and face a small penalty. But they wouldn't go to jail.

Now the United Nations is lauding Portugal. In its most recent World Drug Report, it says, "These conditions keep drugs out of the hands of those who would avoid them under a system of full prohibition, while encouraging treatment, rather than incarceration, for users." The report also noted that the policy had not led to an increase in drug tourism and that "a number of drug-related problems have decreased."

A crack-transition question from a public defender

I received via e-mail this inquiry from a public defender, which I was authorized to put up on the blog:

Given that H.R. 3245 is pending in the House and given that — according to F.A.M.M. — it will eliminate the crack/powder disparity completely if passed, I would like to know if attorneys in various federal districts have been able to continue sentencing hearings in crack cases until we know what will become of HR 3245? Or is there some other creative crack sentencing strategy being employed in light of H.R. 3245?

Though this question does not directly focus on the issue of whether crack sentencing reform by Congress will be made retroactive, it does provide an effective reminder of all the transition issues and challenges posed by proposed sentencing reforms even before they become law.

Governor Kaine grants conditional pardon to three of the "Norfolk Four"

This Washington Post article, headlined "3 of 'Norfolk 4' Conditionally Pardoned in Rape, Killing," provides the details on a notable state pardon grant issued in a high-profile case out of Virginia. Here is how the article starts:

Three members of the "Norfolk 4" -- sailors serving life in prison for a 1997 rape and murder -- should walk free by Friday after Virginia Gov. Timothy M. Kaine granted them conditional pardons Thursday for crimes to which they all had confessed.

The pardons of Danial Williams, 37; Derek Tice, 39; and Joseph Dick, 33, culminated a four-year campaign for clemency based on the sailors' claims that they were coerced into falsely admitting their involvement, that the details they provided were wrong and that there was no physical evidence linking them to the crime. A fourth sailor, Eric Wilson, 33, served more than eight years in prison and has been released. He was not pardoned.

Kaine (D) said he was simply reducing the remaining three sailors' sentences to time served and not declaring their innocence. Kaine said he decided that the men "have not conclusively established their innocence and therefore that an absolute pardon is not appropriate."

While the case against the sailors was pending in 1999, another man confessed to the slaying, and his DNA matched the genetic evidence left at the scene. He later pleaded guilty, was sentenced to life in prison and said he acted alone. But Norfolk police and prosecutors continued to press their case against the four sailors and obtained guilty pleas or convictions for each of them.

The men were convicted in the slaying of Michelle Moore-Bosko, 18, of Pittsburgh, who had recently moved to Norfolk and secretly married her longtime boyfriend, William Bosko. Her parents, Jack and Carol Moore, were adamantly opposed to clemency and, after listening to the defendants' confessions, continue to think they are guilty.

Pardon Power has a lot more on Governor Kaine's clemency action and reactions thereto.